NORTH DAKOTAOPEN RECORD & MEETING LAW North Dakota Attorney General’s Office

Sandra DePountis

DISCLAIMER

This presentation is not intended as legal advice. Please consult your city or state’s attorneys for legal counsel

when needed.

OPEN RECORDS

All records

Possession of public entity

Regarding public business

OPEN

N.D.C.C. § 44-04-17.1(16) (definition of “record”)

DEFINITION OF “RECORD”

• Includes recorded information of any kind, regardless of the physical form or characteristic by which the information is stored, recorded, or reproduced.

N.D.C.C. § 44-04-17.1(16)

DEFINITION OF “PUBLIC BUSINESS”

• “all matters that relate or may foreseeably relate in any way to …the performance of the public entity’s governmental functions, including any matter over which the public entity has supervision, control, jurisdiction, or advisory power; or…the public entity’s use of public funds.”

N.D.C.C. § 44-04-17.1(12)

GENERALLY OPEN:

Personnel fileJob performanceEvaluations

E-mails that are business related

Records on Personal DevicesHome computersPersonal cell phone

Contracts with a public entity – prices, costs

UNLESS SPECIFICALLY PROVIDED BY LAW…

There has to be a law that specifically says the record is protected.

The law will say the record is “not subject to Article XI of the ND Constitution,” “not an open record,” “exempt,“ or “confidential.”

EXEMPT VS. CONFIDENTIAL

• Exempt records may be released.

• Discretion is with the public entity.

• May be called a “closed” record.

• Not against the law to release an exempt record.

N.D.C.C. §§ 44-04-17.1(2) (“closed record”); (5) (“exempt record”)

• Confidential records cannot be released.

• No discretion.

• Can only release pursuant to the statute.

• Class C felony to knowingly release. N.D.C.C. § 12.1-13-01

N.D.C.C. § 44-04-17.1(3) (“confidential record”)

EXAMPLES

Exempt

N.D.C.C. § 44-04-18.1 -Public employee personalinfo, including:NEW: month/day of birth

address

phone number

photograph

payroll deduction info

dependent(s) info

NEW: “type” of leave taken and leave applied for but not yet taken

ConfidentialSocial security numbers

Employee medical records

Computer passwords

Employee use of EAP records

LIBRARY EXCEPTIONS

• NDCC 40-38-12: Public Library Records

• Records of library patron’s name or other information that could identify a patron and information on the subject requested by the patron - exempt

• NDCC 44-04-18.23: Library, archive, and museum collections

• Donor records if the donor requests as a condition of the donation that the record not be released to the public for a specific amount of time (not exceeding 20 years beyond the death of the donor) - exempt

THE BASIC RULES:

Every person has the right to inspect or make a request for a public record.

Generally, cannot make person fill out a formNEW LEGISLATION – although cannot require initial

request to be made in writing, can require for clarification purposes

Exception: need to verify for exempt/confidential records

The requester DOES NOT have to give their name or reason for the request.Exception: need to verify for exempt/confidential

records

You only have to provide one copy of the record, once.

THE BASICS CONTINUED…

You must provide records – not opinions or explanations.Request for information is not a request for

records.

Requests should reasonably identify the record. clarification v. intimidation tactics

You only have to provide records you have in your possession.However, cannot contract with third party

to “hold” your records and then claim not in your “possession.”

THE BASICS CONTINUED…

Generally, you do not have to create new records or put into different formatExceptions:If request paper copy and only have

electronic copy, must provide paper copy, but can charge in accordance with N.D.C.C. § 44-04-18

N.D.C.C. § 44-04-18(4)Database informationText messages

NOTE: you do not need to turn over mobile device – N.D.C.C. § 44-04-18(4)

THE BASICS CONTINUED…

Give a legal reason for any denial of records.New legislation: including if records do not

existN.D.C.C. § 44-04-18(7)

Review and redact for confidential information.

N.D.C.C. § 44-04-18.10

Communicate with requester – give estimate of time, costs, etc.

THE BASICS CONTINUED…

New Legislation:If records available on the internet, can

refer the requestor to the website.

However, if requestor does not have internet access or a computer, will need to provide a paper copy of the record.Can charge in compliance with

N.D.C.C. § 44-04-18

“REASONABLE TIME”

• Provide records within a “reasonable time.”

• Several factors used to determine appropriate length of any delay, including:

• need to consult with attorney if reasonable doubt exists on whether the record is open

• excising confidential information

• bulk of request and volume of documents reviewed

• accessibility of documents

• office staff and availability, workload, balancing of other responsibilities

BASICS OF CHARGING:

• 25 ¢ per copy for 8x11 or 8x14 page.

• Locating records – first hour free, thereafter $25/hour.

• Redacting confidential information – first hour free, thereafter $25/hour.

• No charge to forward electronic copies unless it takes IT longer than one hour to produce, thereafter can charge actual cost of IT resources

• Actual cost of postage, maps, color photos.

• Can ask for money up front.

• 2015 LEGISLATION:• May withhold records for subsequent requests until you receive

payment for any outstanding balance• 5 or more requests from same requestor w/in 7 days, may treat as

one request when computing time to locate/excise records

• Access is free!

N.D.C.C. § 44-04-18

BASICS OF OPEN MEETINGS

• Quorum of

• Governing body

• Of a public entity

• Discussing public business

• MEETING

N.D.C.C. § 44-04-17.1(9) definition of “meeting”

Example: Public Library – 5 member board of directors under NDCC 40-38-03

DEFINITION OF “MEETING” INCLUDES “COMMITTEES”

• Committees: two or more people acting collectively pursuant to authority delegated to that group by the governing body. • Includes delegation of any public business,

including information gathering

• Did the governing body delegate any sort of authority?

• Is the committee doing something the governing body could do itself?

IT DOESN’T MATTER…..

If the committee doesn’t have final authority;

If the committee is just “brainstorming” or “factfinding;”

If the committee is only going to recommend something to the governing body.

A MEETING CAN HAPPEN…

By conference call

On very short notice

Over video conference

At a restaurant

NOTE: use sparingly!

EXCEPTIONS:

• Meetings of national, regional, or state associations.

• Chance or social gatherings where no public business is considered or discussed.

• NEW: Training seminars where no other public business is considered or discussed.

• Delegation to one person – one person is not a committee.

N.D.C.C. § 44-04-17.1(9)(b)

COMMON VIOLATIONS

• Using emails or other electronic devices involving a quorum of a governing body to discuss public business

• Permissible:

• Provide information for members to review before a meeting

• Ministerial matters – setting a meeting date

• Violations:

• Sharing thoughts, ideas, opinions, to a quorum

• Hitting “reply all” and holding discussions via email

COMMON VIOLATIONS

• Telephone straw polling.

• Serial meetings – smaller gatherings collectively constitute a quorum and public business is discussed.

TWO KINDS OF MEETINGS:

Regular

Set by filing yearly scheduleMust still create agenda

for each meeting

Agenda should contain all topics known at the time of drafting the notice

May discuss items not on the agenda at the meeting

Special

Can only discuss the items on the agenda

Agenda must be specificCannot use “catch-all”

phrases such as “old business,” “new business”

NOT TO WORRY….Posting notice is easy!

WHAT THE NOTICE SHOULD SAY:

Time, date, and location of the meeting;

Topics to be discussed;

Notice of any executive session.

The public should be able to read the notice and understand what the governing body is planning to discuss. Don’t be vague.

N.D.C.C. § 44-04-20

WHERE TO PUT THE NOTICE:

At the main office;Appropriate central location: city

auditor, county auditor, secretary of state OR put on public entity’s website;Location of the meeting;Give to anyone who has requested it.Special meetings – agenda must be

given to official newspaperNOTE: this does NOT mean it needs to be

published! But see NDCC 40-38-05 –requiring publication on proposal hearings

WHEN TO PROVIDE NOTICE:

Notice should be posted “at the same time as such governing body’s members are notified.”When governing body receives the agenda,

the public should see the agenda

What if it’s a special meeting, and the members know the date of the meeting but no agenda has been prepared?Post notice of date at the same time members

know of the date.Once agenda is prepared, it should also be

posted at the required locationsN.D.C.C. § 44-04-20(5)

EXECUTIVE SESSIONSN.D.C.C. § 44-04-19.2

Must be legally authorized

Most common: exempt/confidential records; attorney consultation and negotiation strategy. (N.D.C.C. § 44-04-19.1)

Most common violation: closing meeting to discuss personnel matters!

EXECUTIVE SESSION PROCEDURE:

Convene in open meeting;

Announce in open meeting the topics to be discussed and legal authority;NOTE: To discuss confidential information – no motion necessary.

To discuss exempt/closed information - motion to enter into the executive session.

Record the session (keep for 6 months);

Note time of executive session and who attended in minutes;

Only discuss topics in announcement;

Final action in open meeting.

N.D.C.C. § 44-04-19.2(2)

MINUTES OF MEETINGS

• Must contain:

• Names of members attending

• Date and time meeting was called to order and adjourned

• List of topics discussed

• Description of each motion made and whether seconded

• Results of every vote taken

• Vote of each member on every recorded roll call vote (required for all nonprocedural votes)

N.D.C.C. § 44-04-21(2)

VIOLATIONS

• Attorney General’s opinions under N.D.C.C. § 44-04-21.1:• 30 days of alleged violation except meetings without notice

– 90 days.• If action isn’t taken & requester prevails in civil action

requester will get attorney’s fees.• Consequence for failure to comply with AG opinion –

potential personal liability & pay for legal counsel.• NEW: Attorney General can now mandate training for

violations of law.

• AG can refer a public servant to the state’s attorney for multiple violations.

• A public servant who knowingly violates the law is guilty of a class A misdemeanor.

N.D.C.C. § 44-04-21.3N.D.C.C. § 12.1-11-06

VIOLATIONS

• Violations may be subject of civil action under N.D.C.C. § 44-04-21.2.

• Action must be commenced within 60 days of the date the person knew or should have known of the violation or 30 days from issuance of AG opinion.

• Court may award $1,000 or actual damages for intentional or knowing violations.

MORE INFORMATION

www.attorneygeneral.nd.gov

Manuals

Opinions

Fact Sheets